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Jibben v. State8/10/1995
In these consolidated cases, we are asked to consider the authority of the State of Wyoming to commence or complete proceedings to revoke probation, pursuant to WYO. STAT. § 7-13-305(c) (June 1987), after the probationary term has expired. James Jerome Jibben (Jibben), in Case No. 94-119, and David Schaub (Schaub), in Case No. 94-146, contend Brunsvold v. State, 864 P.2d 34 (Wyo. 1993), stands for the proposition that the State must initiate and complete any proceeding to revoke probation before the end of the term of the probation. In Jibben's case, the petition to revoke probation was filed on the twenty-eighth day after the five years of the original probationary term had elapsed. In Schaub's instance, the petition to revoke probation was filed within the probationary term but, for various reasons, the revocation proceeding was not completed until more than thirty days following the two years specified in the original probationary term. Jibben appeals from the order revoking probation. Schaub's case comes before the court upon certified question from the district court. When their situations are properly analyzed, neither Jibben nor Schaub had completed his probationary term, and we hold the proceedings were commenced and subject to completion well within the respective probationary terms. In addition, we are satisfied Brunsvold is distinguishable from the circumstances presented in this case. We affirm the order revoking Jibben's probation, and answer "no" to the question certified in Schaub's case.
In the Brief of Appellants, the statement of the issue is:
Does Brunsvold v. State, 864 P.2d 34 (Wyo. 1993), require that a probation revocation proceeding be commenced and completed prior to the time a probationer's probation period expires?
This statement of the issue is identical to the question certified by the District Court for the Third Judicial District in and for Uinta County, upon a joint motion by Schaub and the State of Wyoming (State) for certification. In its Brief of Appellee, the State reiterates the same question as its statement of the issue.
The operative facts to be gleaned from the record in Jibben's case, No. 94-119, are that he offered a plea of nolo contendere to a charge of second degree sexual assault in violation of WYO. STAT. § 6-2-303(a)(v) (1983) on May 1, 1986. Pursuant to a plea agreement, the district court deferred acceptance of Jibben's plea and suspended the prosecution in accordance with the provision then found in WYO. STAT. § 7-13-301 (1977). Jibben was placed on five years of supervised probation. He later moved to Florida where he was convicted of manslaughter while driving under the influence of intoxicating liquor and, in a second case, of child sexual abuse. These violations were admitted by Jibben in the probation revocation proceeding. The record demonstrates that, after May 1, 1986 and prior to May 1, 1991, Jibben was incarcerated in Florida for at least 619 days. Still, he contended the court was without jurisdiction because the petition to revoke his probation was filed May 29, 1991, twenty-eight days after the completion of his five-year probationary term. In presenting this contention, Jibben specifically relied upon Brunsvold. The district court rejected this argument and sentenced him to a term of not less than one year, nor more than five years, in the penitentiary. Jibben has appealed from the Order After Revocation of Probation Hearing and Conviction Entered, the order imposing sentence.
In Schaub's case, No. 94-146, the district court set forth a Statement of Facts Relevant to the Questions Certified:
1. On June 3, 1992, David W. Schaub appeared before the Court for
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